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of the water of the Charles river if the flow had begun without artificial aid, the jury might find that it was a watercourse to which the same rules of law apply as are applicable to natural watercourses.

As there was evidence tending to show that an important reason for digging the ditch was drainage of the meadows, and as there was other evidence relied on by the defendants, it was a question of fact for the jury whether it was ever in any proper sense a watercourse of any kind, or anything more than a ditch for carrying off surface water and draining the land through which it passed.

If this should be treated as a watercourse, the judge rightly 573 ruled that the defendant would be liable if it maintained a dam which held back the water that otherwise would have flowed through the ditch, and thus sent down the Charles river an increased quantity of water, to the injury of the riparian proprietors below. But he was wrong in telling them that, if this was a nuisance affecting all the riparian proprietors on the stream below, not affecting one person more than another, this is not the proper remedy. By an illustration he suggested that the remedy in such a case would be by indictment, and added : “If this dam did not affect the particular plaintiff more than any other owner on the stream below the locus of the dam, then perhaps this defendant might be called into some other court to answer, rather than in this in an action of tort." The plaintiff's request on this subject was as follows: “The plaintiff can recover if he proves any special damage to his land, although similar damage may have been sustained by some other riparian proprietors." This instruction should have been given. The

. rule is that if every riparian owner suffers damage in his property precisely like that of every other riparian owner, he may have his remedy in an action of tort: Lawrence v. Fairhaven, 5 Gray, 110; Wesson v. Washburn Iron Co., 13 Allen, 95, 90 Am. Dec. 181; Blackwell v. Old Colony R. R. Co., 122 Mass. 1. The plaintiff asked the judge to instruct the jury that “the fact that other obstructions had grown or been placed in Long Ditch, will not preclude the plaintiff from recovery if the dam erected by the defendant contributed or tended to impede the free flow of water through the ditch.” The proposition of law intended to be embodied in the request is correct: Wheeler v. Worcester, 10 Allen, 591; Jackman v. Arlington Mills, 137 Mass. 277; Sherman v. Fall River Iron Works, 5 Allen, 213; Monmouth v. Gardiner, 35 Me. 247. But there was no error in refusing the instruction, for the mere fact that the dam tended to impede the flow of water through the ditch, would not necessarily show that it would so far affect the flow of the Charles river as to cause any injury to the plaintiff's property.

It is true, as the plaintiff contends, that to maintain an action he is not obliged to show in his use of the land actual present damages. It is enough if it appears that an injurious effect is produced upon his property by the maintenance of the dam, such 574 as to diminish its value, if the defendant, by lapse of time, should acquire a right to maintain the dam : Newhall v. Ireson, 8 Cush. 595, 54 Am. Dec. 790; White v. Chapin, 12 Allen, 516; Peck v. Clark, 142 Mass. 436, 8 N. E. 335; Parker v. American Woolen Co., 195 Mass. 591, 81 N. E. 468, 10 L. R. A., N. S., 585.

Exceptions sustained.

A Watercourse is a Stream of Water Ordinarily Flowing in a certain direction, through a defined channel, with bed and banks; the size of the stream is not material: Maxwell v. Shirts, 27 Ind. App. 529, 87 Am. St. Rep. 268. As to whether a watercourse may be artificial as well as natural, see Hawley v. Sheldon, 64 Vt. 491, 33 Am. St. Rep. 941; Missouri Pacific Ry. Co. v. Keys, 55 Kan. 205, 49 Am. St. Rep. 249; Diana Shooting Club v. Lamoreux, 114 Wis. 44, 91 Am. St. Rep. 898. Where the flow of a stream has been diverted from its natural channel, or obstructed by a permanent dam, and this has continued for the time necessary to establish a prescriptive right, the riparian owners along the stream, who have improved their property with reference to the change and in reliance on the continuance thereof, acquire a reciprocal right to have the artificial conditions remain undisturbed: Kray v. Muggli, 84 Minn. 90, 87 Am. St. Rep. 332, As to the liability to riparian proprietors of one who overflows their land by constructing a dam, see Allen v. Thornapple Electric Co., 144 Mich. 370, 115 Am. St. Rep. 453; Rankin v. Harrisonburg, 104 Va. 524, 113 Am. St. Rep. 1050; note to Mizell v. McGowan, 85 Am. St. Rep. 711.







[152 Mich. 53, 115 N. W. 985.] STATUTE OF FRAUDS.—Part Payment, to Take a Contract for the sale of goods out of the statute of frauds, need not be in money. (p. 391.)

STATUTE OF FRAUDS— Part Payment.--The Baling of Hay by the Purchaser Thereof, in pursuance of an oral contract of sale, constitutes a sufficient part payment to take the transaction out of the statute of frauds. (p. 393.)

SALE-Damages for Breach of Contract.--Vendors of Goods Who have repudiated the sale and refuse to make a delivery cannot urge, in a suit against them by the vendee to recover damages, that the title to the goods has passed by delivery and receipt. (p. 393.)

Anderson & Warner, for the appellants.
Barnard & Lewis, for the appellees.

63 MONTGOMERY, J. The plaintiff is a buyer of hay, and through his agents, Homer B. McWilliams and John Van Horn, made a contract with the defendants, who own and operate two farms in Van Buren county, and who were the joint owners of the hay crop thereon, for the purchase of twenty-four tons of hay or more, at the option of the defendants. The contract was by parol, and as appears by the testimony offered on behalf of the plaintiff, was as follows: 54 “Mr. Dean said, 'I want ten dollars a ton, and you bale the hay.' We finally bought all of the hay for ten dollars a. ton and we to do the baling and we were to take the hay the first cars we could get at Gobleville after the hay was baled."

The testimony of the other witness for plaintiff does not vary materially from this, he stating: “We were to pay him ten dollars a ton for it, and we was to pay for the baling."

It was also a part of the agreement that the defendants. were to draw the hay to Gobleville and place the same on board cars. After the contract was made, the plaintiff sent balers to the premises of the defendants, who baled the hay, the defendants being present and assisting in the work. The price paid for baling the hay was one dollar and ten cents per ton, or thirty-three dollars and fifty-five cents, that being the regular price for such services. The defendants subsequently refused performance of the contract, and this action was brought to recover damages for the breach. Plaintiff was permitted to recover below the difference between the purchase price of the hay and its actual market price at the date when delivery was contemplated. Defendants bring error, and contend that the contract was void under the statute of frauds, and has never been validated, and this presents the principal question for our consideration.

Our statute of frauds, 3 Compiled Laws, section 9516, reads as follows: “No contract for the sale of any goods, wares or merchandise, for the price of fifty dollars or more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest, to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby or by some person thereunto by him lawfully authorized."

It is obvious that at the time this contract was made there was no such delivery or part payment as satisfied the terms of this statute. But as this statute does not require the payment or acceptance to be at the time of the 55 making of the contract, as is the case in New York and some other states (see 1 Mechem on Sales, sec. 419), it is competent for the parties to validate their contract by any act which amounts to a delivery and acceptance or to a payment. The circuit judge was of the opinion that when the hay was baled by the plaintiff's agents upon the premises of the defendants and with their co-operation, this constituted such a delivery and acceptance as would answer the requirements of the statute of frauds.

It is strenuously insisted that there was no such delivery or acceptance, and plaintiff's counsel do not seek to maintain that there was. Without passing directly upon the question, therefore, in this case, we may assume that there was no such completed delivery as the statute requires, and that the defendants still retained the title to the property after the same was baled.

We are not concerned with the correctness of the reasoning of the circuit judge if the correct result was reached. The question occurs, therefore, whether the expenditure of one dollar and ten cents per ton upon this hay, which remained the property of the defendants, which expenditure was received and accepted by them, and was made in pursuance of the contract between the parties, was such a part payment as answered the requirements of the statute. It is contended that the thing in earnest must be actually paid, and received by the seller. This we fully accept. But there can be no doubt in this case that the service of baling this hay was received and accepted by these defendants, and if this was done at a time while the hay remained their property, and such service was received in pursuance of the contract made between the parties, we can conceive of no valid objection to treating this as a part payment of the consideration which was to pass from the plaintiff to the defendants at a time prior to the passing of the title of the hay to plaintiff. This being so, there has been a payment by the plaintiff and a receipt by the defendants of a part of the consideration. It was the hay in its improved form as baled hay which, ac-. cording to the theory of the defendants, 56 was to pass from the defendants to the plaintiff, and if this be accepted as true, which it doubtless is, it cannot be successfully contended that the defendants have not received the value of services performed by the plaintiff in pursuance of this contract.

Suppose this agreement had been on the part of the plaintiff to pay a stated price for this hay when baled and delivered and at the same time to thresh defendants' oats on the farm. The contract would not be materially different. In the one case, as in the other, plaintiff is performing a service for defendants which increases the value of their property. It is not necessary that the payment made upon the contract be in money : See Kuhns v. Gates, 92 Ind. 66; Howe v. Jones, 57 Iowa, 130, 8 N. W. 451, 10 N. W. 299; McLure v. Sherman, 70 Fed. 190.

Defendants rely upon Corbett v. Wolford, 84 Md. 426, 35 Atl. 1088; Terney v. Doten, 70 Cal. 399, 11 Pac. 743; Galbraith v. Holmes, 15 Ind. App. 34, 43 N. E. 575; Hudnut v. Weir, 100 Ind. 501, which was again before the court as Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24.

The case of Corbett v. Wolford, 84 Md. 426, 35 Atl. 1088, is claimed to be controlling. In that case, however, while the facts are somewhat similar to the case under consideration, the question of whether the baling of the hay was a part payment was not under consideration at all. The case dealt with the sole question as to whether there had been in fact any delivery and acceptance which would take the transaction out of the statute of frauds.

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